Employment, Labour and Equalities Law operation update 2020

Neena: Good morning everyone. My name is Neena Gupta and we're just letting people coming in. It's going to take a few minutes for us to bring all the participants in as we have over 600 people registered for this conference. We're hoping to get underway shortly and welcome you more formally.

Good morning everyone. For those of you who are joining this is the 2020 first virtual Employment, Labour and Equalities seminar for the Ontario group of Gowling WLG. We have over 600 people registered so we're just going to give them a few minutes to get queued up in Zoom and we will be on shortly.

Good morning everyone. This is the 2020 virtual Employment, Labour and Equalities seminar of the Ontario ELE group at Gowling WLG. We do have over 600 people registered and about 300 have been let in. So I'm just going to wait another couple of minutes before we get underway.

Good morning everyone and thank you for joining the 2020 Employment, Labour and Equalities seminar presented by lawyers in the ELE group of Gowling WLG. My name is Neena Gupta and I'm a partner of the Waterloo region and also co-Chair of the Diversity and Inclusion Committee of Gowling WLG. Along with my co-host, Elisa Scali, partner of the Ottawa office, we are delighted to present to you our first ever virtual Employment, Labour and Equalities seminar. We are delighted to see so many return registrants and we regret very much that we can't meet in person and share a cup of coffee and get caught up. But in these times we still felt it was important to update you about the top legal developments that have occurred in 2020. You will notice that there is a significant change in format. All three of the offices shared the responsibility of putting this update together and so you will be introduced to a number of our partners and associates who have brought forward their suggestion for the top legal development of 2020. Our agenda is quite extensive and you will see that we have put in two quick body breaks. One at 10:10 and another one just before our 'Stump the Lawyer' panel at 11:20. In accordance with HRPA regulations we will be able to provide you with the HRPA code at the end of the seminar, around 11:55 or 12:00. Obviously COVID-19 has been a major development of 2020. But we actually wanted to brief you about some very important developments that have occurred in the last 10 months which actually will have very longstanding implications for our practice and, quite frankly, to your business. One of the themes of 2020 is the court's attack on employment contracts. Language which many of us would find clear and unambiguous have been set aside by the courts. We have four speakers on various cases starting with Khiam Nong. For those of you who don't know Khiam personally you know that she is smart, vivacious and we are privileged to know her as an amazing cook and hostess. She has not allowed COVID-19 to slow her down and has invested in a patio heater, that generates warm heat and about the same amount of sound as a jet engine, just to keep the summer entertainment season going. If you get invited to an event at Khiam's home you should really, really accept it. The food is delicious and the company divine. Khiam, over to you.

Khiam: Thank you for that introduction, Neena, and thank you for talking about my cooking skills. It's one of the things that I've been doing a lot during COVID and as a result I've gained lots and lots of weight but it's totally worth it. Thanks everyone for joining us this morning. I know that everybody's probably Zoom fatigued by now but we appreciate you spending time with us and I think you're going to really be glad that you spent time us with today. I'm going to talk to you about a Court of Appeal case that was released in, I think it was June, of this year. Waskdale and Swegon North America Inc. Can you put the slide up, Chairman? Thank you. This is a case that was a summary judgment motion at the Superior Court of Justice and Mr. Waksdale was a short service employee who was terminated on a without cause basis. He actually had eight months service and he was terminated, without cause, and provided with his entitlements pursuant to the without cause termination provision in his employment contract. He sued for wrongful dismissal and sought damages at common law. He argued that the for cause provision in his employment contract was unenforceable and that the unenforceability of the for cause termination provision resulted in rendering the without cause termination provision unenforceable. The employer conceded that the for cause termination provision violated the ESA. But stated that it was irrelevant since he was being terminated pursuant to the without cause termination provision. In addition, the employer argued that the severability clause would act to sever the illegal for cause termination provision in the employment contract. In fact Mr. Waksdale acknowledged the termination of employment with notice provision complied with the minimum requirements of the ESA. At the summary judgment motion the courts, sorry can you change the slide, Shannon? Thank you. At the summary judgment motion the Superior Court agreed with the employer, finding that the enforceability of the cause provision did not impact the enforceability of the without cause provision. Therefore the employee's common law reasonable notice entitlement was sufficiently rebutted and the motion for summary judgment was dismissed. Mr. Waksdale brought an appeal to the Ontario Court of Appeal and the Ontario Court of Appeal overturned the lower courts ruling. This was a very unhappy day for employers and employer counsel alike.

Here are the key takeaways from the Court of Appeal. The Court of Appeal stated that all termination provisions must be interpreted as a whole, and not on a piecemeal basis, when determining whether or not they're void for breaching the ESA. In addition, it doesn't matter if the employer does not rely on a void provision at termination, and ends up providing all of the statutory entitlements required to be provided at the time of termination, because the enforceability of a termination provision needs to be assessed at the time the agreement was formed. Finally, the Court of Appeal stated that the severability clause could not have any effect on clauses of contract that have been made by statute. Since the termination provisions must be read together the severability clause cannot apply to sever the offending portion of the termination provisions. As a result, Mr. Waksdale was going to be provided with his notice at common law. It was sent to the Superior Court for a determination on that particular issue. So, what is the result of this? Next slide, please. The result of this was very, very disappointing for employers because many, many, many employment agreements do have a termination provision for cause section that says that the employee's employment can be terminated for cause but it does not necessarily specify that it's subject to the minimum entitlements under the ESA. Unfortunately, the language of the for cause termination provision was not detailed in either the lower court decision or the Court of Appeal decision so that makes it difficult for us to determine what the courts were looking at, specifically when they were looking at the language of this for cause termination provision. But I think we're safe to conclude that most employment agreements with cause termination clauses may be invalid now as a result of this case.

So what does that mean for employers? Well it means that you should be getting your employment agreements updated for new employees and for employees being promoted and, as a best practice, we recommend that you try to do it every year because what you'll see from the presentation today is that termination provisions are being attacked, gosh, almost monthly. At least every few months by the courts in Ontario and so the law is consistently changing and developing and so we don't know what's going to hit us next. This case also raises the question as to what other clauses in an employment agreement might serve to invalidate the without cause termination provisions. So the court really emphasized, in this particular case, that employment contracts must be read as a whole. So we may not be dealing with just the for cause and the without cause termination provisions in this particular case. There may be other provisions in an employment contract that the courts will say has the effect of impacting entitlements upon termination. So it's really, really important that it's not just your termination provisions that are updated regularly. It really should be the employment contract as a whole that gets updated so that your Gowling's lawyer can assist you to update the entire contract. Neena, I think that's my time. Neena is telling me that's time. So thanks very much everyone for joining us today.

Neena: Well thank you very much, Khiam, and I apologize if my vid is not working. I'll try to figure that out. If anybody has questions I invite them to use the Q&A portion, and we will be answering questions at the end, just to keep on time. I would next like to invite Tushar Anandasagar. Tushar has the distinction of being the only member of this panel presenter who has actually never worked, physically, in a Gowling's office. He is truly a COVID-19 hire. He did come in for his interview. We hired him. COVID struck. We still hired him. We onboarded him and I think he has spent the rest of the time working from his apartment, with his gorgeous dog, and then taking drives with his 700 horsepower Mustang, which makes almost as much noise as Khiam's heat lamp. Tushar, I'm going to turn this over to you to discuss Groves and UTS Consultants.

Tushar: Thank you very much, Neena. Thank you for the kind introduction. Thank you Khiam for covering what is probably one of the most groundbreaking and significant cases that are coming out of 2020. If I could just ask, when you're moving through these decisions everyone, try to keep in mind as well that these court decisions are coming from a system that has been very much pro employee for the course of the past, at least the last 10 years, and so let's start off with Groves versus UTS Consultants. So Mr. Groves founded UTS Consultants and served as its President from 1992 until 2017. So an extensive period of service. Now he and his wife actually sold the shares of the business in 2014 via a share purchase transaction to a third party. As part of that transaction the parties actually turned their minds to, "Okay. What happens in the event of termination? We want to keep Mr. Groves on but what happens in the event of a termination?" So the parties agreed at the time of the transaction that Mr. Groves would resign as an officer and a director of the company. So formal resignation, in writing, but he would continue as an employee, under new ownership, as the President of the company. Lo and behold, three years later, Mr. Groves is terminated without cause in 2017. Now the Court of Appeal had to interpret the termination provision in this employment agreement between UTS and Mr. Groves. But I think for the purposes of our discussion let's start with the lower court decision because the observations there were upheld by the Court of Appeal. There are significant issues with the language of the agreement and the approach that the parties took at the time.

Let's look at the first major issue, without cause termination provision. Now, the provision itself actually contained a clause which stated that from the date of this letter you're length of service will be calculated. So from the date of your offer letter, notwithstanding your 1992 to 2014 service, and it said that twice. Twice within the same termination provision. Excluding any period of service you had with the company prior to the date of this letter. Now the second issue was that the termination provision actually stated that for the purposes of calculating any entitlement, any entitlement which would be inclusive of any entitlements under the Employment Standards Act, which Mr. Groves may have arising from the termination of your employment without cause. Any prior service with the company is excluded and you thereby and hereby waive and release any prior service entitlement. Again, 1992 to 2014. What's interesting about this particular case is that this commercial context of the relationship, the actual termination provision was based on, and linked to in a sense, the share purchase agreement pursuant to which Mr. Groves got a significant chunk of change. Naturally, because we're dealing with some of the most pro employee courts in the country, Groves challenged the clause on termination. We're talking about a wrongful dismissal proceeding that happened after he was terminated without cause. The company attempted to rely on the termination provision and state that Groves was not entitled to any credit for his prior service. Essentially the court found that there was a violation of the ESA. First and foremost, section 9.1 of the ESA deems employment to be continuous, notwithstanding the sale of an employer. Section 65.2 of the ESA says that where severance pay covers both continuous and non-continuous service, which means that if you only offer entitlements with respect to a brief window of time, from 2014 to 2017, your not actually giving the person their entitlements under the severance pay provisions of the ESA. The court agreed. The court said, "Look, I mean, these are not in compliance with the ESA and they constitute an invalid attempt to contract out of the ESA." The employer came back and said, "Well, hang on a second. We've got this saving provision." So their saving provision under the employment agreement said, "Notwithstanding whatever this clause says, the company guarantees that the amount payable upon termination without cause shall not be less than that required under the ESA." I think we've all seen language like this. It's a fairly common inclusion. It's the safety net, so to speak, so the court then considers, "Okay. What about this saving provision?" Well the court said the saving provision, in this particular case, was insufficient to fix an otherwise illegal clause and limit the employee to the minimums under the ESA. So the Superior Court, the lower court, found that the termination provision could not be saved. The employer and employee could not contract out of the common law and as a result Mr. Groves, rather than getting credit for his three years post-transaction, was actually entitled to an award of 24 months under the common law. Now that decision, significantly, was actually upheld by the Court of Appeal including the comments that were made with respect to the saving provision. That is quite significant because prior to the Court of Appeal's decision in Groves, there was some case law that said a saving provision could essentially modify the termination clause and in effect somewhat read it up, so to speak, and allow for an employer and employee to save the provision. That wasn't the case as a result of the Groves decision and this is a significant shift in the law. Now, the key takeaway, if I may, if we can go to the next slide, please. The key takeaway here is that statutory and common law liability is unaffected by this share purchase agreement or the release that was given at the time of the closing. So this resignation, partial resignation, as well as the release and if we look at the mechanics of that particular decision, we can think about a potential work around here which may actually get us to where we need to be, in terms of mapping out and limiting possible exposure in these types of circumstances where a company is being purchased. If we may go to the next slide as well, Shannon.

The implications here are that we can reconsider the approach, and actually require what is called a post-dated resignation, which is in effect from the date of the transaction through to the end of a fixed term. So this could be 12 months. This could be 18 months but it's in effect a resignation, a notice of resignation, which is actually worked into a contract of employment. If we look to the approach that was taken in Groves they found that the resignation and the release strategy that was employed was a sham, but if we look to a potential fixed term relationship and the ability to set a timeframe for an employer and employee to agree upon a period of employment, we can then look at the possibility of okay, you know what? Regardless of whatever happens under the circumstances after the transaction, if the relationship should break down, at least we have a defined end point. Neena, I think that would be pretty much everything that I have to say on Groves. It's a significant shift in the law and I'm happy that everyone was able to join us this morning.

Neena: Well thank you, Tushar. It is wonderful to hear that there is actually a possible solution. I apologize again but it appears that nobody wants to see me today which is fine. I want to invite Melanie Polowin. Those of you who work through the Ottawa office will no doubt have heard Melanie before. Melanie's a wonderful person, generous and open. She is a literal tree hugger and I think she's been hugging more trees because, of course with COVID-19, we just can't hug everybody we want to hug and this is particularly a problem for Melanie. She's also fluently bilingual, and for those of you who have seen her longer Ottawa presentations, she's fluently bilingual in English and profanity. Melanie, take it from here, please.

Melanie: Thank you very much, Neena. Sending out a virtual hug to everybody here. I'm going to start by saying that the Matthews/Ocean Nutrition Supreme Court of Canada decision broke my heart. Why did it break my heart? Because, and you've been hearing about this for years and you're hearing about it in the speakers before me, and you'll hear about it in the speakers after me, there has been a long, a prolonged attack on termination clauses, limitation and forfeiture clauses, incentive plans. That attack has been widespread. It's been varied. It's had ups. It's had downs but I always maintained a hope in my heart that when it got to the Supreme Court of Canada, the Supremes would settle things down. They would swing the pendulum back the other way a little bit more reasonably. They would signal that you lower courts have gone too far and they didn't. They did the exact opposite. That is why they broke my heart.

So, very quickly, this was nothing stunning about the case facts itself. There was a long time high level employee. He had been employed by a company. It later got acquired by another company. There was friction developed post-closing of that. Eventually some of his aspects of this role were removed. Clear personality conflict. He says, "Okay. That's enough. I'm claiming I'm constructively dismissed." and the fight was on. This is what happened. He claimed he was constructively dismissed and the court agreed. He claimed that because of his constructive dismissal the 12 month termination package clause that he had contractually as his entitlement should not be enforced and the court agreed. They gave him 15 months instead. He claimed for a variety of reasons that he should get his full incentive, and you know this argument, for his entire package period and, ultimately, the Supremes agreed. They agreed about that for a variety of reasons. Some of which had to do, or most of which had to, the way that documentation was drafted. Frankly, there was nothing surprising in that aspect of the Supremes' decision. Can we go to the next slide, please? You've heard of this before. Whenever in an incentive plan or in an employment agreement you say, "Hey. You can only get this if you are full-time or in active employment at the time that we pay it to you." Then there's going to be a challenge. A lot of the time those challenges work because the drafting has to be, based on this decision, almost at a level of perfection. That's one of the most difficult things that we are grappling with is that, literally, these lines of cases culminating in this seem to require almost a level of perfection of drafting from the employer. A level of perfection of process from the employer. How you sign these documents up. How you show them to the employee. How you make sure that they read them and sign them up and so forth. They also seem to, or we know, that they require almost a level of perfection in the behaviour of the employer. Anything that the employer does to make an employee unhappy can potentially lead a court to say, "Well, your contracts were actually validly drafted, and we would've enforced them if you hadn't been such a meanie to your employee, but you were a meanie and so we're not going to let you enforce them." But in this particular case, the language, that was at issue. Was language that, based on a line of cases that's been developing over the last two or three years, we know was not valid. Next slide, please.

So these are the things that Matthews reinforces to us. Reasonable notice is the default position. Not employment standards. Not the contractual clause. Reasonable notice is the default position. The court starts by saying, "Here is your compensation basket." Hope you can see my hands. "Here's your compensation basket. Everything that you would have earned or enjoyed, if you had been at work for the entire reasonable notice period, is sitting in this basket. That's where we start." Next, the courts says, "Is there anything in the drafting and sign up of contractual documentation that justifies the court taking something out of the basket? Or making something in the basket smaller?" Even if there is the court also says, "Is there anything that the employer has done? That even though the drafting is meeting our standards of virtual perfection, is there anything the employer's done that let's us say, 'Sorry employer. Not today. We're not going to let you rely on that.'" A constructive dismissal will normally be an excuse for the courts to not enforce any of the contractual limitation clauses. That is the reality. So again, we can try and draft around that problem but that's always going to be a problem. The game changing aspect of this decision, because none of what I've already said was game changing, the game changing aspect of this decision is that the court said even if the drafting is fine and enforceable, when we look at reasons whether or not we will allow the employer to take things out of the reasonable notice basket, one of the things we will look at, sort of the behavioural things or the process things, is whether the employer has taken steps to draw these harsh limitation forfeiture provisions in incentive plans, sales plans, equity based incentive plans, cash based incentive plans. Even potentially, though they didn't talk about this, termination clauses in an employment agreement, whether the employer has taken steps to draw the employees attention, specifically, to those forfeiture clauses before having the employee accept the agreements or accept the documents or agree to participate in those plans.

Neena: Okay, Melanie, your time is up and I'm going to call it because I think this is the same theme that our friend, Andrew Bratt, is going to continue on. So I'm going to introduce you to Andrew Bratt who's a partner in our Toronto office. Now, Andrew, I must tell you is a heroic man. Fighting the local raccoons in his area with ingenuity and a number of "humane methodologies". He's also a great hockey fan so I think at this point in time, it's Andrew Bratt, 7, Raccoons, 2. So clear winning for Andrew Bratt. Both in court and against those pesky raccoons in Toronto. Go for it, Andrew.

Andrew: Thanks, Neena. I think it's actually seven to one but who's counting? In any event, Melanie's always a very tough act to follow but she offered a perfect segue into my part of the presentation and I want to talk to you about the decision of the Ontario Supreme Court in Battiston versus Microsoft Canada Inc. Ironically, Battiston was actually pre-dates the decision in Oceans that Melanie just talked about. It's interesting because what I take away from Battiston, and I'll get into this in just a moment, is that there seems to be this new positive obligation upon employers to actually call to the attention of employees these harsh and onerous provisions that restrict entitlements upon termination. So as Melanie mentioned, and I'm going to get into it in just a moment, even where you have perfect plan language, which I'm starting to believe is impossible, that will not be sufficient unless you've actually called these provisions to the attention, explicitly, of the employee. So, Battiston's a long decision. It's an important decision. There's many different aspects we can focus on but in the few minutes I have today I want to talk about two components to the decision. That is the court's decision with respect to Mr. Battiston's entitlements to a bonus and a bonus both during the fiscal year in which he was terminated and the bonus over the 24 month notice period, that he ultimately awarded. Then I want to turn our attention Battiston's entitlements under the stock award agreement with respect to his unvested shares as of the termination date.

So really, really quickly on the facts. Battiston was terminated by Microsoft after some 23 years or so of employment. He was let go in August of 2018 just following the expiration of Microsoft's fiscal year. What's interesting is although he finished the fiscal year Microsoft took the position that Battiston did not perform well at all, in that final year, and as result they did not award him any performance bonus with respect to 2018. In addition to that they said he was not going to receive any merit increases which, of course, affected his calculation of severance entitlement. Microsoft also took the position that because he wasn't entitled to a bonus during 2018 he ought not to receive a bonus during the reasonable notice period. Lastly, Microsoft took the position that he was not entitled to any vesting of his otherwise unvested stock awards that had been previously granted and that would have vested over the course of the notice period. So that's the position Microsoft takes. With respect to the bonus, there's two components to the argument that Microsoft made, as I mentioned ago. So first Microsoft said his performance was really, really bad and therefore the manager awarded him a zero dollar bonus in 2018. Well the court ultimately agreed that was not capricious. It was not arbitrary. It was perfectly reasonable for Microsoft to come to that conclusion and the court took no issue with Microsoft not awarding a bonus with respect to 2018. But the court was not prepared to make the leap to suggest that although his performance was so bad in 2018 there was no evidence to suggest that his performance would be equally poor, or not improve, over the course of the notice period. To Melanie's point about the basket of entitlements, the bonus would normally fall in that basket, and the court felt that there was no reason to restrict Battiston's entitlements during the reasonable notice period. Number one because the plan language didn't exist. There was no plan language around that. Number two because they were not persuaded that his performance would be equally poor during the notice period. So although they don't give him a bonus in 2018 they ultimately concluded he was entitled this bonus during the notice period and they base it on a two year average. Personally I struggle with that decision. I don't really understand how a court can say on the one hand, frankly, you were really, really bad this year but we have no reason to believe that you'd be really, really bad next year, when there was zero evidence to show that he would actually improve. So that's the issue with the bonus. But keep in mind that there was no plan language. Next slide, please.

With respect to the stock award agreement, it was a little bit different, because there was plan language and I'm not going to read the plan word for word, but suffice it to say it was good language and it said something to the effect of you're deemed to be terminated for the purposes of a plan on the final date on which you provide services to the company, or any subsidiary, regardless of the reason for the termination, and here's the kicker, regardless of whether the decision to terminate was lawful or unlawful. So even if Microsoft screwed up and violated the terms of the employment contract the language said he would not be entitled to any continued participation during the notice period. And, the language said that not only that but the common law notice period wouldn't serve to extend the active employment period. The court actually finds that the language in the stock aware agreement was good. It was unambiguous and it specifically excluded or restricted Battiston's rights upon termination. I find that somewhat surprising because the language was not as clear as what we're seeing the courts require in more recent decisions, like Oceans, and like Paquette versus Terago Networks, but nonetheless the court says it's fine but they refuse to enforce the provision anyway. The do so for what Melanie was talking about earlier because they find that the provision was harsh and oppressive and if you, the employer, are going to restrict entitlements upon termination you better make sure that the plan language is good and that you take sufficient steps to bring it to the employees attention. In this particular case the court was not persuaded by Microsoft's evidence that they had sent email communications about the plan. Even though Battiston had signed off on the plan, ultimately what happened was, his evidence was that he was not aware of this particular provision and it sort of begs the question. If you're going to have a 25 page plan, and somewhere buried on page 17 in font 10, you've got a provision that ends entitlements upon termination, it's not going to work. You really, really, really need to bring this to the attention of the employer. Last slide, please.

So very, very briefly in terms of implications. Not enough to have sufficient plan language. You need to bring it to their attention. I would suggest that you review your corporate documents because they probably need to be re-drafted in light of recent decisions and, again, you keep very accurate records of any steps that you've taken to bring these important provisions to the attention of the employee. Thank you.

Neena: Thank you, Andrew. So we see a theme that the court favours employees in most cases and I think this theme will continue in areas that don't deal with termination clauses. I'm pleased to ask my co-Host, Elisa Scali of the Ottawa office, to present on English versus Manulife Financial Corporation. Now I envy Elisa. She's dealing with COVID-19 with grace and ease. She's invested in a walking treadmill so she can work and walk and keep those calories off and she has the most gorgeous chocolate lab keeping her company. So this is the way to deal with COVID-19. Elisa, over to you.

Elisa: Thank you, Neena. Can everyone see me?

Neena: We can see you and hear you.

Elisa: Okay, perfect. So I will be talking about the case of English versus Manulife Financial Corporation. This is one of those cases that was a good news story for employers until the Court of Appeal chimed in. Ms. English was a customer service representative working with Standard Life. She started working there about March of 2006. In 2015 Manulife acquired Standard Life. Near the end of 2015 Manulife announced that it would implementing a new computer system. At the time Ms. English was in her 60's. She'd already planned on retiring near the end of 2017. However, with the news of a Manulife converting to this new computer system, she didn't want to go through that training so she decided she'd retire earlier, at the end of 2016. She meets with her supervisor, gives them a letter of resignation. Her supervisor senses that she might not be quite sure about her decision so the supervisor assures her, "You can change your mind if you want to." Less than three weeks later Manulife changes their mind. They decided they're not going to implement this system anymore, the computer system. Given this news Ms. English advises her supervisor, "I don't want to resign anymore." So she withdraws the resignation. The supervisor acknowledges the request. During the conversation he doesn't say it's a problem. He doesn't say yay or nay. He pretty much remained silent. The supervisor goes to HR to confirm what Manulife's response will be. Manulife confirms that it will honour the notice of retirement effective December 2016. This came as quite a surprise to Ms. English given that her supervisor had told her she could change her mind. Manulife still maintained it's position. Ultimately Ms. English continued working until about December 12, of 2016, when Manulife asked her not to return to work. Not surprisingly she sued them for wrongful dismissal. So the issue before the court was whether or her resignation was clear and unequivocable and whether she was entitled to rescind that resignation. The Superior Court found that the resignation was clear and unequivocable. They didn't find any evidence that it was not a voluntary resignation. She'd submitted her letter of resignation to the supervisor. They reviewed some cases which had held that even if an employee submits a letter of resignation, they have up until the effective date of resignation to withdraw it, as long as the employer has not relied upon that notice to its detriment. But the Superior Court rejected that approach and basically said that once you submit your resignation, and it's accepted, it's no longer up to the employee to rescind that notice of resignation. So ultimately Ms. English appealed that decision. Not surprisingly the Court of Appeal didn't agree that the resignation was clear and unequivocable but rather held that it was equivocal given the circumstances in which it had been presented. Mainly the fact that she resigned because of this new computer system. That was the impetuous for that resignation, and once that decision was reversed and they no longer wanted to implement that system, the basis for the entire resignation had essentially disappeared. Furthermore, the supervisor had promised her that she could change her mind, which is what she then went on to do. The court held that Manulife was bound by that supervisor's promise to Ms. English. Ultimately they held that on December 12, that termination amounted to a wrongful dismissal. She was awarded 12 months in damages. Those damages were based primarily on the fact that of Ms. English's evidence that she would have retired at the end of 2017. In this case, given that the court found that the resignation was not clear and unequivocable, it did not really consider or comment on the Superior Courts due that once a notice of resignation is accepted an employer need not show that it relied upon the notice to its detriment, if the employee attempts to withdraw the resignation notice. So that area of the law is still, I would say, in debate.

The takeaways from this case, next slide, please, are that this case would have been or may have been decided very differently if the supervisor had not told Ms. English that she could change her mind. While that promise might have been made to her in passing it was this response upon which the court relied to hold Manulife ultimately accountable. So as a best practice employers should establish clear and simple procedures that can be followed where a resignation notice is received and ensure, obviously, that the managers are trained on these procedures to avoid these situations where employees are given mixed messages or made these one on one promises. Furthermore, when a resignation is clear and unequivocable, once that resignation is received an employer should accept it and do so explicitly and unequivocally in writing. So that then arguably the employer does not have the opportunity to later withdraw it. However, given the debate in the case law, you might also consider taking steps to rely on the notice of resignation itself, such as training or replacing the employee or hiring a new employee. Now whether a notice of resignation is clear and unequivocable will always depend on the particular circumstances of each case. So you should proceed with caution where an employee revokes their notice of resignation due to changing circumstances. It's always important to gather all the necessary facts to assess the situation before making a decision on how to proceed.

Neena: Thank you, Elisa, and I now call upon Boris Subara, also of the Ottawa office. Boris is a wonderful associate in our Ottawa office. He's a proud Wikipedia contributor. He has lived all over the world in five different countries but we're certainly happy to have him in our Ontario practice on ELE and he's going to speak on Heller versus Uber, a case that made headlines this year. Boris.

Boris: Thank you, Neena. Good morning everyone. Uber Technologies Inc. and Heller, the never ending saga. We've talked to you about this case, I believe, for the past four years and will probably had to do it again next year as well. By way of background, David Heller was a driver with Uber Eats in Toronto. When he signed up he was asked to a sign a standard form contract with Uber which required him to pursue arbitration against Uber in Amsterdam, in the Netherlands, in the event of any kind of dispute with Uber. In 2017, and this is just background information for you, in 2017 Mr. Heller started a class proceeding against Uber in which he sought declarations that, one, Uber drivers are employees and not independent contractors and so are covered by the ESA. Two, that Uber had violated the ESA because th is arbitration clause was an attempt to contract out of it, and also because drivers were not being paid minimum wage and overtime pay and vacation pay. Three, that the clause in the services agreement, which required him to bring his complaint to Amsterdam, was unenforceable. In 2019, last year, the Ontario Court of Appeal indeed found that this clause contained in the standard form agreement was not enforceable. That opened the door for the class proceeding to go ahead, however, Uber appealed all of this to the Supreme Court of Canada. Next slide, please.

At the Supreme Court level the court found, first of all, that Ontario courts and not arbitrators in the Netherlands, had the authority to determine the validity of the arbitration agreement because this was a dispute that engaged employment considerations rather than some sort of international commercial agreement. The court commented that a jurisdictional challenge should not be referred to an arbitrator if doing so would result in the challenge never being resolved. In the circumstances the court concluded that Mr. Heller's inability to cover the up front fees created a real prospect that his position would never even be heard. When I talk about the up front fees, Mr. Heller was required to pay $14,500.00 US just to bring his claim to Amsterdam. Second of all, the court held that the arbitration clause in Heller's agreement with Uber is invalid for unconscionability. The court held that there is a clear inequality of bargaining power between the two parties. The arbitration agreement was a standard form contact. Mr. Heller did not have the ability to negotiate the terms of that agreement, because it is a standard form contract, all he could do was basically click on 'Yes, I agree to these terms' on the app when he signed up. He was also much less sophisticated than Uber and the agreement did not provide any info on the rules that would apply under the International Chamber of Commerce or Dutch law or anything like that. Mr. Heller, when he agreed to the terms, he was not aware that the clause imposed $15,000.00 in up front fees just to get the process started. That is without his accommodation fees, his travel fees, his legal fees. So all that to say that a person in Heller's position could not be expected to recognize the implications of the clause. So the court found that there was a resulting improvident bargain because Mr. Heller was unduly a weaker party at a disadvantage. His annual income did not allow him to cover the up front fee and the costs were disproportionate to the size of any award that could reasonably have been foreseen when the contract was entered into. Next slide, please.

In an eight to one decision the Supreme Court of Canada held that the clause was unconscionable. Now this does not mean that all arbitration agreements, generally, are going to be invalid. It simply means that they may be where there is an equality of bargaining power and there is a resulting improvident bargain such as significant barriers to justice access. In response to the ruling Uber modified its contract with Canadian drivers. The new clause requires arbitration locally rather than in Europe. It requires drivers to pay the arbitration filing fee up to the cost that would have been incurred if the driver had filed a complaint in court. In 2019 the Court of Appeal had also found that the Uber agreement was an unlawful contract out of the ESA and a breach of section 5 of the ESA which prohibits agreements to waive an employment standard. In this case the employment standard was the right to pursue an ESA complaint and to have it investigated. The Supreme Court in 2020 did not overrule that or even address that. So given the Court of Appeal's decision, in 2019, that is the current state of the law. The court did not settle the question of whether Mr. Heller and other Uber drivers are in fact employees. It only established that the clause was unenforceable and that Mr. Heller could pursue his complaint against Uber in the Ontario courts.

Neena: Thank you, Boris. I'm going to cut you off there because I have no doubt in 2021 we will call you back to do another presentation on Uber and Heller and we'll see where that goes. We are running a little behind our schedule so I'm going to actually call upon Cristina Borbely. This is a case actually where the employer won but the plaintiff was a lawyer. So I sometimes wonder if it's an anti-lawyer bias of our courts. Cristina Borbely, who's an associate in our Waterloo region office, Cristina is a wonderful addition to our legal team but she is also a super trivia champion. So when we play Trivial Pursuit or bar games on trivia she's absolutely my number one choice for my trivia team. Over to you, Cristina.

Cristina Thank you for that, Neena. So this case, Thurston, an Ontario children's lawyer is not a heartbreaker but rather provides much needed clarity. This case considers the economic dependency required in a dependent contractor relationship. As Neena said, Thurston was a sole practitioner lawyer who provided legal services to the Office of the Children's Lawyer, or OCL. She signed a series of fixed term contracts with OCL for 13 years. In 2015 OCL decided not to renew her contract and provided no notice. Thurston brought an action seeking pay in lieu of reasonable notice, claiming that she was a dependent contractor and was entitled to 20 months notice. Since Thurston could not be considered an employee the question before the court was whether she was a dependent or independent contractor. A dependent contractor status in a non-employment relationship as opposed to independent contractors status arises where there is a minimum economic dependency demonstrated by complete or near exclusivity. The court had to determine whether the minimum economic minimum dependency standard was reached in this case. Thurston's contract with OCL made no guarantee of the total value or volume of work that Thurston would receive and required her to confirm that she did not work exclusively for OCL. As well, the contracts did not have a right of renewal and gave the OCL the right to terminate the contract, in any circumstances, without notice. Though there is no exclusivity in the contract the evidence showed that OCL work generated approximately 40% of Thurston's annual income. Thurston also maintained an independent legal practice on the side. Next slide, please.

The motion judge found in Thurston's favour based on the 13 year continuous work relationship between the parties, the fact that she performed work that was integral to the OCL and the fact that Thurston was seen as an OCL employee by the public. The motion judge also found that the fact that almost 40% of Thurston's earnings came from the OCL was sufficient to meet the minimum economic dependency standard needed to create a dependent contract relationship. The Court of Appeal did not agree and reversed the motion judge's decision and dismissed the case. The court stated that exclusivity is a hallmark of the dependent contractor category. Exclusivity is tied to the question of economic dependency and requires a consideration of the relationship as a whole. In this case, Thurston did not work exclusively for the OCL. The court stated on no account can 39.9% of billings be said to constitute exclusivity or near complete exclusivity. Near exclusivity necessarily requires substantially more than 50% of billings. If it were otherwise, exclusivity, the hallmark of dependent contractor status, would be rendered meaningless. Therefore Thurston could not be considered a dependent contractor as loss of 40% of Thurston's business was insufficient to meet the minimum economic dependency standard. Next slide, please.

So why is the case important? This case clarifies the meaning of dependent contractors and minimum economic dependency. Dependent contractors, like employees, are entitled to reasonable notice of termination while independent contractors are entitled only to any notice of termination provided for in the agreement between the parties. Even though a sudden loss of a major client may drastically impact contractor's business, a significant loss of income will not be enough to imply dependent contractor status with the implied right to reasonable notice, unless the contractor receives substantially more than the majority of their income from that client. This case therefore provides clarity and allows companies to analyze risk and any future obligations they may have. Thank you.

Neena: Thank you, Cristina, very much. I now want to call upon Anne Lemay, of our Ottawa office, who is also dealing with COVID-19 with extraordinary grace. She has refined her baking skills to a very high degree and I am trying to figure out ways on which I can get on her mailing list for care packages. Haven't quite managed that but I'm still going to work on it. So, Anne, over to you on a really interesting decision, from my perspective, how constructive dismissal, harassment and WSIB interact in Ontario.

Anne: Thank you, Neena. Good morning everyone. If we can just switch slides here. Before telling you about this decision I wanted to provide you with a bit of background on the Workers Compensation regimes, generally. So each Province has there own Workers Compensation regime. In Ontario we have the WSIB and the WSIAT which hears the appeals from the WSIB. These regimes provide no fault compensation to works who suffer accidents or injuries in the course of their employment. As part of the Workers Compensation regimes worker's right of action, against their employers for workplace accidents or injuries, is taken away. An employee cannot sue his or her employer for a workplace accident in Civil Court. Now I want to provide you with a bit of background on benefits for mental health conditions. In Ontario, WSIB benefits for mental health conditions had traditionally only been available for traumatic mental stress, such as PTSD for first responders. In January of 2018 the WSIB expanded entitlement for mental health conditions to include chronic mental stress where there is a substantial work related stressor. The WSIB's policy on chronic mental stress specifically states that workplace bullying and harassment are examples of substantial work related stressors that can give rise to a compensable chronic mental stress injury.

So now if we can go back to this decision. In this decision the employee, Ms. Morningstar, had been employed by Hospitality Fallsview Holding in it's housekeeping department, starting in May of 2015. three years later she resigns and a files a statement of claim with Ontario Superior Court. In her claim she stated that she was forced to resign due to the harassment and bullying and abuse that she endured during the course of her employment and the resulting mental distress that she experienced. The employer filed an application with the WSIAT, with the Tribunal, claiming that the worker's claim was effectively a claim for chronic mental stress under the WSIB and therefore her civil claim was barred. This is called a right to sue application. Generally, the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA, the Workplace Safety and Insurance Act. However, in exceptional cases where the circumstances of the wrongful dismissal claim are inextricably linked to the workplace injury, the claim may be barred. In this case the Tribunal found that because the claim was for constructive dismissal, rather than wrongful dismissal, the claim essentially was that Ms. Morningside's termination was caused by the harassing and bullying conduct of her co-workers and of management. That the harassment and bullying that she endured had caused her chronic mental stress. The Tribunal found that Ms. Morningside's claims were therefore inextricably linked to her alleged workplace harassment and bullying. The Tribunal commented that other remedies sought by Ms. Morningside had also been based on the same facts of harassment and bullying in the workplace and concluded, therefore, that her right of action was taken away, including all of her claims. So damages for mental stress, moral aggravated and punitive damages, as well as the tort of harassment. If we can switch slides here.

Even though Ms. Morningside had never made a claim of WSIB benefits the Worker's Compensation regime had barred her from bringing the civil action against her employer, where the action flowed from alleged workplace harassment, and the employer's alleged failure to address it. So as part of the decision the Tribunal gave Ms. Morningside six months to file a claim for WSIB benefits for her chronic mental stress. I'd like to note that although some other Provinces have also included chronic mental stress in their Worker's Compensation regime not all of them have found that a right of action for constructive dismissal was barred as a result of workplace harassment. Specifically there's a recent decision out of British Columbia with similar facts that went the other way.

So what do I want you to takeaway from this case? First, if you have WSIB coverage in your workplace, please note that if you receive a complaint of workplace harassment and workplace bullying your reporting obligations to the WSIB may be triggered. We'd be happy to help you figure out if they are. Second, if you have WSIB coverage and, if you receive a civil claim including allegations of workplace harassment and bullying, some if not all of the causes of action may be removed where the damages flow from the alleged workplace harassment and workplace bullying. The Tribunal will consider the fundamental nature of the action to determine whether the claim arises in respect of a workplace injury. Again, we'd be happy to discuss your litigation strategy if you receive such a claim. Thank you very much.

Neena: Thank you, Anne, and remember I'm on that list for baking goodies. COVID has really dominated the agenda and I would really like to call upon Shefali Rajaputra who is in our Waterloo region office. Shefali is an associate. She too has been handling COVID-19 with grace and ease and in particular, she's a mommy, proud mommy to two lovely golden retrievers, the second of which is in fact a cute pandemic puppy by the name of Thor. The other one is named Chaos and I can tell you personally they are properly named. Over to you Shefali.

Shefali: Thank you, Neena. Good morning everyone. I'm going to be spending the next few minutes speaking to you about AODA, which stands for Accessibility for Ontarians with Disabilities Act. First off, let me quickly give you a refresher on AODA. What is AODA? It is an Ontario specific legislation which was introduced to remove barriers for people with disabilities. AODA has implemented mandatory standards which organizations in Ontario must follow to become accessible to people with disabilities. These obligations under AODA apply to any organization that has at least one employee in Ontario and these obligations vary depending on the size of the organization. So AODA categorizes organizations in two buckets. Small and large. Organizations that have less than 50 employees are categorized as small organizations and organizations that have more than 50 employees are considered as large organizations. Which brings us to the first reminder and why we're talking about AODA today. So, under AODA, one of the obligations for obligated organizations is filing of the accessibility report which happens every three years. In 2020 is the third year where this accessibility report is due. Originally this accessibility report was due to be filed by December 31, 2020. All organizations which had 20 or more employees are required to file this by December 31, 2020. But because of the pandemic the government has extended this deadline and now this deadline has been moved to June 30, 2021. So if you're hearing about AODA for the very first time from me, do not panic, because you still have some time to get your house in order and make sure that you're in full compliance with AODA. We can help you with that and make sure that you file that accessibility report by June 30, 2021. Next slide, please. Thank you.

Okay, so this next reminder is specific to large organizations which is organizations that have 50 more employees in Ontario. Now, there is organizations who have chosen to comply with this regardless of the fact that they do not fall under this category, but this is not mandatory for them. So, what is this reminder? So as for the obligation under AODA, organizations that have a public facing internet website were required to meet certain accessibility standards. As of January 1, 2014, all large organizations which an internet website were required to meet WCAG 2.0 Level A standard. Now, as of January 1, 2021, all of these large organizations are required to step it up and make sure that they are in compliance with the new standard which is WCAG 2.0 Level AA. There are two exceptions that are two criteria's that do not apply under the WCAG 2.0 Level AA. That is with respect to live captioning and the second one is with respect to pre-recorded audio descriptions. Unfortunately this deadline has not been moved up so all large organizations need to keep this on your radar and make sure that your internet websites are in compliance by January 1, 2021, with the new WCAG 2.0 Level AA standard. One thing to note is that sometimes organizations have questions or issues about what if they cannot make our internet website compliant. Well there is an exception under the legislation which says that if it's not practicable then you may not do it. But the issue with that exception is that there is no case law to date which provides guidance or provides any sort of explanation as to what is and what is not practicable. So it's really moot as to whether or not you can rely on this exception so I would say proceed with caution and you make sure that internet websites are in full compliance with AODA. I know we're running a little bit short for time so I'm trying to keep it short and sweet as Neena ordered. That's all for me, Neena. Over to you.

Neena: Thank you, Shefali. You are indeed a wonderful associate. You listen to your articling principal and your mentor. For the last speaker for this section is Alycia Riley, who is a alumni of the Waterloo office, has joined the Toronto office but we still think of her as our own, and she has deep roots in this area because she continues to own property in Waterloo region so we're hoping to get her back. Alycia, if I could have you speak about that just announcement that was made by the Ford Government regarding protecting certain companies from COVID-19 litigation and how that applies to, possibly, to employers.

Alycia: Yes, absolutely and thank you, Neena. I will always feel part of the Waterloo region team as well. So, to touch briefly on Bill 218, I know we're pushing up against the break so I'll keep my remarks as short as possible. This legislation was introduced on the 20 of October, but the discussions actually been going on for much longer than that, about as far back as June. So before I delve into what this legislation might entail it's important to understand the context. Everybody can think back to March, April, May of this year when COVID was first developing and it seemed as if the recommendations and the public health guidelines were changing on an almost daily basis. Canadian health officials have been criticized at some points for what seems to be inconsistent messaging on how to keep people safe during the COVID pandemic. A part of that is just the reality of the evolving science as health care professionals and public health advisories continue to learn about the virus. But the question then became what measures should be introduced to protect companies against liability arising from COVID-19. The Ontario Ford Government has not tabled Bill 218 which is a partial answer to what type of liability might be considered as we continue to move through this pandemic.

What Bill 218 specifies is if it's passed, and it has not been passed as of yet, but what it will say is that no cause of action against any person as a result of an individual being, or potentially being, affected with or exposed to COVID-19, as a result of an act or omission will be subject to liability if at the relevant time the person acted or made a good faith effort to comply with public health guidance and any Federal, Provincial or a Municipal law relating to COVID-19, and, provided that the person was not grossly negligent. So again, this has not come into effect as of yet. When I checked this morning it is still before a standing committee but once enacted it will have a retroactive effect to March 17, 2020. Now the Bill goes into some detail as to what a good faith effort is. What constitutes public health guidance and the definition of public health guidance is actually quite broad, which is good, but the discussion regarding gross negligence is not specifically defined in the legislation so we rely on the case law for that. Which tells us that it would have to be something well in excess of what is considered reasonable standard of care. The good news is that the definition of person includes an individual, a corporation or another entity and therefore it does apply to businesses. So this seems like very promising legislation, however, there are a few caveats. If we could go to the next slide, please.

One of the main considerations when we have public facing businesses is that you have two potential obligations. You have an obligation to your patrons and you also have an obligation to your employees under the Occupational Health and Safety Act. Bill 218 actually explicitly carves out workers, or their survivors, under the Workplace Safety Insurance Act regarding personal injury arising out of the course of employment. It also exempts a cause of action of an individual who has been exposed to COVID-19 that occurred in the course of their employment. So, the takeaway is that Bill 218 is encouraging for potential patrons and occupiers liability purposes, however, it does not provide protection in a pure employer capacity. So the takeaway there is that you still have an obligation as the employer to take every precaution reasonable in the circumstances to ensure the safety of your employees. There are a lot of materials available online that have been published through the Ministry of Labour. If you have not already done so I would strongly encourage you to review those materials and there are a lot of industry specific guidelines as well. Thank you.

Neena: Thank you very much, Alycia, and that takes us to the break. We are running a few minutes late so I'm going to start promptly at 10:20 and we will call upon Amy Derickx and Andre Poulin-Denis to talk about the myriad of changes on the ESA. So we are going to have a break for seven minutes and during that time I'll try to fix my camera and hopefully we will see all of you back then. Given the shortage of time, and how much time it takes to queue everybody up, I'm going to suggest that even if you take a bit of a break that you leave your Zoom link up so you don't miss anything. Thank you for your attention so far.

Okay, we're just about ready to recommence and it's my pleasure to introduce to you two associates who have collaborated, very quickly, very sincerely on dealing with the many, many changes to the ESA. I remember at the beginning of COVID-19 it sort of felt like I was back in law school because there were so many changes going on. So, tell you a little about the two associates from Ottawa. Andre Poulin-Denis is definitely the person you want to have on your team if you're orienteering or you're in the back country or just exploring a new country because he has an infallible sense of direction. So very useful when you're GPS conks out. Amy Derickx is someone who honestly I don't probably want care packages from because she has defied the laws of physics by simultaneously over and under cooking food. Which is the accomplishment. But despite her cooking skills she's a phenomenal associate, as both of them are. So over to you, Amy and Andre.

Amy: Thanks, Neena. Alright. Next slide, please, Shannon. So, what's on tap with the A-Team today? We're going to be talking to you about major changes to the Employment Standards Act in Ontario. We're going to focus on the infectious disease emergency leave. We are then going to talk about how the infectious disease emergency leave works with existing statutory leaves. Then we're going to get in to the leave and termination. This is a massive topic. We're going to touch on the high points but please, if you do have questions, we'd encourage you to be in touch. Next slide, please.

So what are we talking about in a nutshell? Well, infectious disease emergency leave is an unpaid job protective leave if employees aren't performing the duties of their position because of a specified reason, which we're going to get into in just a moment, related to a designated infectious disease. Thus far the only designated infectious disease is COVID-19. Next slide, please.

What are those specified reasons? Who is eligible? Employees who are not performing the duties of their position because of the following reasons. For instance, perhaps they're under medical investigation, supervision or treatment in connection with COVID-19. Perhaps they're under an order pursuant to the Health Protection Promotion Act, like an order from a medical officer of health in the event of a contact. Perhaps they're under an order pursuant to the Reopening Ontario Act, like an order that might prevent one healthcare worker from providing health care services in multiple institution settings with the policy purpose, of course, trying to prevent the spread of COVID. Next slide, please.

That's not all. Who else is eligible for the leave? Employees who are in isolation or quarantine or acting in accordance to public health information or direction. That direction can come from a number of different sources. For instance, a public health official, a qualified health practitioner, Telehealth Ontario, which for those of you who aren't from Ontario, is the telephone means of achieving your health advice. Maybe it's direction from various levels of government like Federal, Provincial, Municipal officials or a public board of health. That's not all. We still have additional people who might be eligible under this leave, including employees who are directed by you, their employer, to not come to work in connection with the fear of perhaps spreading the COVID-19 in the workplace. Next slide, please.

Those who are eligible would also include employees who are providing care or support to a specified family member or individual in connection with, of course, COVID-19. Specified family members right now is a very broad and expansive list of people. They would certainly include direct family members but it's as expansive as including someone who considers the employee to be like a family member. Other scenarios that would trigger the application here would include employees who have to stay home because they can't sent their kiddies to school or daycare because of a closure. Or employees who are choosing not to send their kiddies to daycare or school because of fear of the spread of COVID-19. Lastly, employees who are prevented from returning to the Province because of a travel restriction. Next slide, please.

That's the answer to who. Now let's get into the meat and potatoes of what. What are the statutory rights under this leave? Employers cannot fire or penalize or threaten to do so, in any way, an employee who is planning or in fact takes this statutory leave. We like to say, think of it like this employee is going on a parental or pregnancy leave with respect to the continuing statutory rights. So what might those include? The entitlement to have the same job that they had before going on leave or if that job has been legitimately eliminated, a comparable job. The right, of course, to be free from penalty or reprisal. Next slide, please. The right to continue to participate in benefits plans. So there's a list here of what those might include. Pension, life insurance, accidental death, extended health, dental. Next slide, please. Then you might be wondering, okay, what about premium costs during this leave. The employer must continue to pay their share of those premium costs unless the employee has said to you, in writing, that they do not plan on continuing to pay their share. Then lastly, the right to continue to earn seniority or recognition of that length of that service while on the statutory leave. Next slide, please.

How long is this statutory leave? Currently there is no specified limit to the number of days someone can be on this statutory leave where one of those specified reasons states that they are eligible for the leave. The leave doesn't have to be taken in consecutive days. It can be taken in part days, full days and certainly it does not have to be taken one after another. It can be non-consecutively. The regulation currently says that the COVID period is from March 1, 2020 to January 2 of 2021. That will become important in just a moment when we talk about how this IDEL leave can be deemed to exist. So tuck that away and Andre will address that in just a moment or two. Next slide, please.

Notice. What are the notice requirements for an employee in the event they wish to take this leave, if they are eligible, of course. If this should, notice should be provided to the employer wherever possible. This is not a requirement that if they don't provide leave because of the circumstances, that doesn't mean that they're ineligible for it. Wherever notice is not possible, due to the circumstances, the legislation says as soon as possible thereafter. Notice can also, it's quite loose, in that it can be given to an employer orally or in writing. So, that's all my time but I'm going to pass it onto my counterpart, Andre Poulin-Denis, who is my wonderful counterpart who always laughs at my terrible dad jokes. So over to you, Andre.

Andre: Thanks, Amy. So, now you've received notice from one of your employees that they're going on IDEL, what kind of evidence as an employer can you request that they are in fact eligible? Here the rule of common sense applies. You can request evidence that is reasonable in the circumstances which will of course be dictated by the specific facts. If you have an employee that requests three months of IDEL, after having tested positive for COVID after a week for example, it may not be justified that the leave extends for that long period of time. So it maybe reasonable to request additional information. Similarly if there's a pattern of absences that might be appropriate. Conversely, if the cost of obtaining that evidence is prohibitive, that might not be appropriate. What is clear from the ESA is that an employer cannot require an employee to provide a medical certificate. Simply because you don't want, there's a good public policy reason you don't want people who have potentially contracted COVID or have come into contact with COVID, sitting in a waiting room in a health clinic. If there is a return to work situation, or a request for an accommodation that arises because of IDEL or following IDEL, then it can be appropriate to request additional information or evidence from the employee. Next slide, please, Shannon.

Now, one of the complexities of the regulation is, of course, that IDEL wasn't in place at the beginning of the pandemic and so to remedy that the Provincial legislature has built in retroactivity into the leave. So if an employee was absent from work for COVID related reasons after January 25, 2020 that absence may potentially be designated as IDEL, if they meet the eligibility criteria at that time. The same retroactivity applies with respect to terminations. If an employee's employment was terminated for a reason that is protected by IDEL, after January 25, the employee has a right to request a reinstatement into their previous position, or if it no longer exists, into a comparable position. Next slide, please.

Now, Amy mentioned deemed IDEL a little earlier which should be distinguished from what I'll call regular, air quotes, IDEL where an employee meets one of the eligibility criteria that she enumerated. Deemed IDEL can occur in one of two situations. So the first is where an employer has provided a layoff notice to their employees after March 1, 2020. In such a situation the ESA and the regulations essentially change the legal status of the layoff to a statutory leave IDEL. So the effect of that is to freeze the clock. When an employer provides a layoff notice they have 13 weeks, or potentially 35 weeks if there's a sense of the employment will continue, for example continuation of benefits, to recall that employee. If the employee isn't recalled within the layoff notice period then termination entitlements are owed to the employee. So the effect of changing or deeming the employee to be on IDEL essentially freezes the clock on the layoff notice. Next slide, please. The other instance is where an employer has reduced an employee's wages or pay or eliminated them on a temporary basis for reasons that are related to COVID-19. In such circumstances the legislation provides for a suspension of a constructive dismissal. There is no constructive dismissal. Rather, much like the layoff notice, their legal status changes to being on an IDEL whether it's on a part-time or full-time basis and, of course, depending on the nature of the reduction in hours the employee could potentially be placed on and off IDEL depending on the circumstances. The deemed IDEL lasts for the duration of the COVID-19 period which currently is defined under the regulations as ending on January 2, 2021. Another caveat is that the deemed IDEL provisions only apply to the statutory rights. So an employee may well claim, and we're certainly seeing that, that notwithstanding the regulations, being placed on a temporary layoff or having a reduction in hours is a breach of their employment contract or a breach of their common law rights. It's not entirely clear what the courts will do with that yet because, of course, this is all very new. But hopefully the statutory regime will inform and influence judicial reasoning in this specific COVID-19 setting where it's possible the direction is not necessarily constructive dismissal. Next slide, please.

Once an IDEL ends an employee can essentially stack leave. They can either suspend their IDEL to take another statutory leave or take successive leaves depending on the circumstances. The employee simply has to be eligible for that other leave at the time that they are requesting it. Now the last point that I want to touch on, Shannon if you can turn to the next slide, is what happens now that you have all these employees who are on a job protected leave and your organizational needs change, can you affect a termination? The answer is sometimes. If the employee is on a regular leave, that Amy discussed where they meet the various eligibility criteria, they are in a job protected leave. However, if they are on a deemed IDEL, the deeming ends in one of two situations. Either where the employee has been provided notice pursuant to the ESA or, next slide, please, Shannon, if the termination results from a layoff or a reduction or elimination of hours that pre-dates the filing of the regulation. So May 29. So essentially, if the employee is on a deemed IDEL their employment can be terminated. So, Neena, as you know the regulations are complex. The fact scenarios, the specific facts will dictate whether or not IDEL is available in any given scenario, so we of course invite any questions that may arise, anyone to contact our ELE group for more information.

Neena: Thank you so much, Amy and Andre, and I remind everybody that you can also use the Q&A feature of Zoom to ask questions and get them answered during the ever popular 'Stump the Lawyer' section. I now call upon John Peters, a partner in our Ottawa office. John is a proud dog daddy of an absolutely gorgeous rottweiler bernese something mutt and who often joins us on our Zoom calls. He happens to be a proud and very courageous Habs fan despite the fact that he lives in enemy territory. With that I'm going to turn it over to John Peters.

John: Thank you, Neena. There is so many human rights at play in this new pandemic reality but this presentation will focus on the employees right to be free from discrimination, based on either disability or family status, and their right to be accommodated in the era of COVID-19. With great trepidation I'm following Amy's and Andre's slides because my four slides are just filled with very exciting legislation. So I apologize for that. The good news is because Amy and Andre did such a good job with respect to the ESA I'm going to try and run through my slides more quickly to leave more time at the end. But I will first tackle discrimination in the workplace based on disability and how that is addressed, both under the Ontario Employment Standards Act, briefly, because they did such a good job, and the Ontario Human Rights Code. In slide one, as you can see, I've provided you with, in great detail, section 50.1 of the Employment Standards Act. Amy did such a good explaining the types of leave under IDEL and whether you can seek a medical note. I'm not going to get into that so I'm going to go directly to slide two and talk about the Ontario Human Rights Code.

As you might expect the Ontario Human Rights Code goes further to protect against discrimination in the workplace based on disability. Section 10 of the Human Rights Code defines disability as any degree of physical disability, infirmity or illness, a condition of mental impairment or mental disorder. A side note, if you have offices in Nova Scotia, section 5 of the Nova Scotia Human Rights Act also includes, separate and apart from disability, a prohibitive ground of discrimination for an employer. They can't discriminate based on their employee having irritation fear of contracting an illness or a disease. Which obviously would cover COVID-19. Back to the Ontario Human Rights Code. According to the Ontario Human Rights Commission the above definition of disability is not exhaustive. In June of 2020 the Commission confirmed that COVID-19 and related conditions are covered under this prohibitive ground. So what does that mean? Under the Human Rights Code an employer may not discipline or terminate an employee who has or because they have been diagnosed with COVID-19, or perceived to have COVID-19, or because for example, they are exhibiting certain symptoms, or is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay at home in connection with COVID-19. So that ties in nicely with what you've heard with Amy and Andre with respect to IDEL leaves.

So how do you navigate these waters? Separate and apart from IDEL leave. So let's say you have, I'll give you a fact situation. Mary works for the companies IT help desk, also known as the Employee Crisis Hotline. She needs performer duties from the office. She doesn't want to go on leave. She advises her leader that she has a medical condition which because it's COVID-19 does not allow her to attend at work. Mary wants to work from home and would like her to accommodate her. What do you do? Normally you would get a medical certificate and work with the employee and the medical practitioner to create an effective work place and an accommodation plan. And again, this is not dealing with employees who are on IDEL leave or who are on layoff. It is dealing with someone who's actually wanting to still work but needs to be accommodated. Can you still ask for a medical note to support this type of absence? There is some debate about this but the Ontario Human Rights Commission policy position about medical documentation is three-fold. First, employers should take a request for accommodation in good faith. Second, employers should be flexible and not over-burden the health care system with requests for medical notes. And, third, unnecessarily visiting medical offices increases the risk of exposure for everyone. Also, Mary, may have a real problem getting to a doctor to get a note. As noted, again by Amy and Andre, if they are on IDEL an employee is not required to get a medical note for COVID related leave. So medical notes may not be possible. Andre specifically talked about what else can you ask if you want to support a request for accommodation. There's been sound discussion about producing other evidence such as potentially evidence of a prescription, providing proof that maybe Mary has some type of immune deficiency condition. You should note though that Mary may volunteer that evidence but cannot be required by the employer to produce it as it will raise privacy concerns. So to a large extent you're stuck. The answer to whether you need to accommodate Mary in this situation is likely yes. As an employer you should look at bundling tasks to form one job or provide her with increased technology to allow her to work from home. Unless, as you may recall, it cases undue hardship which is difficult for an employer and perhaps impossible for a large employer to establish. Next slide.

More legislation. Alright. One of the areas I'd like to talk about is the concept of constructive discrimination under section 11 of the Human Rights Code. I'm going to try and deconstruct this lovely slide. I'm going to try and deconstruct constructive discrimination as set out in this slide. Constructive, or indirect, discrimination can occur when a right of a person is infringed, whether a requirement or qualification for employment exists that is not discrimination based on it's face, but in practice in results in discrimination based on a prohibitive ground such as disability. So you might ask why are we talking about that? Constructive discrimination may occur or arise with mandatory mask policies and pre-screening procedures at your office. Let's tackle right to require a mask first. According to the Ontario Human Rights Commission, any requirement related to health and safety and COVID-19, such as wearing a mask or using other protective equipment to perform work safely do not generally cause concern under the code. So that's good for employers but you must be cognizant of certain restrictions. In fact the Ontario Human Rights Commission sets out three specific exceptions. People with certain disabilities may have difficulty wearing masks since they may have severe allergies or experience asthma attacks or have other respiratory issues. That's number one. Two, masks are a barrier to people with hearing disabilities who rely on lip reading or facial expressions to communicate. If you have such an employee you may consider face shields instead of masks. Three, mask may not be suitable for adults with certain physical or intellectual or cognizant disabilities such as autism. So in conclusion a one size fits all mask policy without exceptions could lead to constructive discrimination. The second issue is, let's talk about the right of an employer to require employees to pass pre-screening tests. Or in other words do employers have the right to subject employees to certain tests as a condition to attending at the workplace. Well, let's hope so because most of you have been doing that for the last three to six months. You should note that the right to conduct such tests is considered by the Human Rights Commission as the same as the right to test for alcohol and drug use. It must be bona fide and it must be reasonable. Or as the Ontario Human Rights Commission states the reasons for it must be effective and necessary. In any event the code is engaged. So you have to pay attention to the elements or the qualifications under the Ontario Human Rights Commission. According to the Commission effective means requirements are consistent with public health administry of labour advice. To put that in context a full COVID-19 test as a pre-condition to come to work is likely excessive. Although I note that for some occupations, such as nurses, they're required to get COVID-19 test every two weeks. On the other hand temperature checks and questionnaires for symptoms, check all four boxes. Those questionnaires are considered effective, necessary, bona fide and reasonable in the circumstances of a pandemic. There is one caveat though. Employees should be careful with any personal information collected. So having an employee answer questions as opposed to actually taking and recording their temperature is preferred. The bottom line, both mandatory make policies and pre-screening procedures, if measured, will likely meet both exceptions to the constructive discrimination allegations which are reasonable and bona fide in the circumstances and there is undue hardship on the employer having regard to health and safety requirements in the workplace. That's one situation where undue hardship of the employer is considered.

The last topic I'd like to talk to you about, before we get to my last slide, is human rights as it relates to family status. I'm going to give you a fact situation. Sam is a single parent of two children, aged five and 8. In January 2020, Sam started a new job in a new city, Ottawa, soon to be Ontario's COVID capital. Sam has few to no supports in Ottawa and is concerned about back to school and daycare. So Sam has kept the kids at home and would like to work flex time to allow for child care and education. What do you do? The answer is employers must accommodate to the point of undue hardship where a workplace rule will interfere with the fulfillment of a child care obligation. So what does that mean? So you in slide four I'm talking about the ... case on the subject is Canada versus Johnstone. It's a Canadian Human Rights case but it has been applied across the country. Certainly, in Ontario, where it's noted the Ontario Human Rights Code defines family status as being in a parent and child relationship. I'm just going to give you a quick background on the facts of Canada versus Johnstone. It involves a Canadian border service agency worker who was required to work 37.5 hours a week with six different start times at any given day or night with no predictable pattern. The employees were given 15 days notice of each new schedule subject to the employer's right to change the schedule on five days notice. The employer asked for a static shift which means a set shift. But she did not ask for a nine to five shift. She actually asked for three 13 hours shifts to make at least her 37.5 hour shift in order to manage child care and she was refused. A side note to this, the CBSA actually at the time was giving static shifts or set shifts, in order to accommodate other employees with medical disabilities and religious beliefs. The Federal Court of Appeal ruled the accommodation as required to the point of undue hardship where a workplace policy interferes with child care obligations. What does that mean though and let's examine actually the qualifications for that because it's not just automatic that you have child care obligations. To get accommodation in this situation the employee must meet the four part test. So the first part is the employee must be responsible for the maintenance and supervision of the child. ... means the child will entail legal liabilities. So if you're a parent you're going to meet that first test. Second, there is an obligation which engages the employees legal responsibility towards a child. So the actual child care responsibilities and not just personal choice. So it doesn't include I have to get my kid to hockey or soccer practice. Third, reasonable efforts have been made to meet the custody obligations exploring reasonable alternatives. So there must be a situation that neither spouse or support systems are able to meet child care obligations. In other words, a real child care problem. And, fourth, the controversial rules governing the workplace impede in more than negligible or insignificant matter. As a result it won't be difficult for parents such as Sam, as described above, especially in COVID-19 to meet this test and be entitled to accommodation. Employers must be aware that workplace policies that result in a true child care problem for employees, especially in this pandemic, are prohibited. Employees with core child care responsibilities must be accommodated to the point of undue hardship. Employers would be well advised to review the policies and ensure that they have a process in place to comply with this legal obligation. That is the end of my presentation.

Neena: Well thank you, John, and just for Ontario regulated employers they also have that obligations to have written protocols regarding accommodation for disability under the AODA. So that's just a great reminder, John, and thank you very much. I want to turn the panel over to something that we see in the news or the session over to something we see in the news which is border closures and quarantine and I'm going to call on Bill MacGregor, one of my partners in the Waterloo region office, and one of my neighbours when we used to work in the office together. I have to tell you I absolutely miss him because he is a whistler extraordinaire and there is nothing as cheery as hearing Bill whistle as he works, as he walks by my office. So Bill you are missed, but right now I can get the wisdom on border closures and quarantine, from you.

Bill: Thanks very much. If I do start whistling it's just me forgetting where I'm supposed to be in my presentation and doing a little name that tune interlude. But I'll try and resist that. So, in terms of what I'm going to talk about today, I'm going to focus on travel restrictions, the quarantine and exemptions. But before I turn to that just two broad comments to make. Canada's immigration and work permit programs remain open. We're seeing work permits being processed but COVID has caused delays. I don't want anyone to think that we aren't processing work permits. For those who obtain a work permit, for a potential employee, that work permit is going to allow them to travel to Canada. I'll talk about that in a moment. Secondly, lots of different process and policies but they also change the IRPA legislation. So what did they do there? They added some employer compliance requirements focused on COVID. The said, basically, an employer cannot do anything that would undermine a foreign workers ability to do the 14 day quarantine upon arrival and by policy they've also stated that the person must be paid during that 14 day period that they're initially in Canada. So there is no incentive for them to go out and breach the quarantine requirements. So next slide, please, and we'll turn to the travel restrictions.

This is governed by a number of orders and council OICs and they just keep getting renewed and expended. I suspect that will continue well into next year at least. There's two different OICs. Number one, for travel in from the United States to Canada, and a separate second one for travel from any other place other than the United States. First, the US one. Quite simply worded. You can only come in if the entry is non-discretionary or non-optional. The trick is how is this being interpreted by CBSA at the border and the lack of transparency from CBSA on how they're interpreting it. But basically if someone is coming in with a work permit, or to apply for a work permit or to conduct after sale service, like installation or repairs, that's going to be viewed as non-discretionary. But if you're just coming in as a business visitor that's the hard part and those are likely, those types of entries, are likely not going to be allowed as they'll be seen as discretionary. Turning to entry from non-US locations. So let's take an example. Someone coming from Europe. Maybe they've got to come in and try and fix a machine, for example. You've got to get them to your site in Canada. Well there are a number of exemptions but the broad rule is no travel to Canada unless you have one of the exemptions. I'm only going to cover a few of them. The main ones. One exemption, work permits. Someone who holds a work permit approval. So going to get a work permit for that foreign national hire, or for that emergency repair person, that work permit approval will allow them to board the plane to come to Canada. Another important group exemption is one for those coming into do installation or repair work or commissioning work. So, again, the example of a Canadian company buying some equipment from Europe, they need the technicians from that company to come into support the installation. There's a group exemption that allows that person to board the plane and come to Canada but that equipment must be critical infrastructure equipment and you must be in a sector that's recognized as critical. But those are quite broad. So that includes manufacturing, the food sector, IT, lots of different sectors are available in terms of this sort of safety valve to bring in important after sale service installers that help the economy in Canada. Finally, you may have heard of a public exemption and a national interest travel restriction exemption letter. I'm not going to cover those. They're quite complex. They're very difficult to obtain but Canada has built in, again, a bit of a safety valve that if you don't qualify for another travel restriction exemption maybe you can qualify for this. Or sometimes there's a strategy, perhaps, to bring someone if they can get into the United States first, and then attend at the border in person. They're not going to face the travel restrictions that the airlines are trying to interpret if you're flying directly to Canada from anywhere but the US. Finally, something a bit off topic, travel to the US from Canada. Just want to make people aware of two things. A difference between entering by land and entering by air. The US does have travel restrictions but they only apply to the land border. So if you're trying to send someone to the US from Canada, if you fly them in from one of the major airports, they're not going to face the US travel restriction rules relating to the COVID response. So that's the way to send someone in if they must travel. Coming back, they are going to face the 14 day quarantine, in most cases and that brings me to the next slide on the quarantine requirements.

Bottom line rule, anyone, Canadian, permanent resident or foreign worker, coming into Canada is expected and must quarantine for 14 days. They must have a quarantine plan and as of November 21 anyone flying in must use the ArriveCAN app which is available to download. The Federal Government app is being used to help gather information on travelers in terms of where they'll be staying so checkups can be done to ensure that they are quarantining. But there are some exemptions. There are fewer exemptions compared to the travel restriction exemptions. On the quarantine side the CBSA at the border does have an inherent jurisdiction to grant a quarantine upon arrival. They don't want to do that. It's difficult but there's a chance if you can show you're essential and that you can't quarantine for some very, very strong reasons, possibly you can get that exemption at the border upon arrival. But there's better scenarios if you've got on the enumerated exemptions under the OIC. So I'm just going to name a couple of the main ones. Again, they're few and far between. Number one, if you're into cross boarder transportation. So truck drivers coming into Canada do not face the exemption. Number two, they've build in an exemption, mostly for border towns and border cities, that basically says if you live on one side of the border and you're crossing over to work and you're going back daily or weekly, so regularly, there's an exemption for those returning to Canada under that type of situation. Then lastly, they have again an exemption for specialists and technicians coming in to do installation or commissioning or repair, but there also has to be a rationale. Why does it have to be immediate and why couldn't you plan for the quarantine? So an emergency breakdown, you have to bring someone from Europe, again I use that example, to fix that machine that they provided that is urgent and there's not time to quarantine. But if it's a shutdown schedule for six or seven months from now, they might say you could've planned around that, brought that technician early and had them quarantine. Lastly, employer compliance requirements. Anyone who gets a work permit for someone may face an inspection. That's always been the case. But the focus of the inspections, since COVID, have been on following up with an employer within that first 14 day period of someone coming in and getting that work permit. To make sure the employer is supporting the quarantine and paying that foreign worker during that first 14 days that they're in Canada. Next slide, please.

So in conclusion, just a reminder, our programs are open. Work permits can be obtained and that's the solution. Getting the work permit approval that's the solution to allowing that foreign national to travel to Canada. It's an exemption to the travel restrictions. Secondly, this is a complex area given all the changes out there, but it can be managed. Both the travel restrictions and the quarantine restrictions and exemptions. Those can be managed but you must ensure that you're up to date on the latest changes. It's a moving target so what might have been successful, or the strategy two weeks ago or two months ago, might not apply now. So you do need to know the latest policies and OIC language that's out there. Thanks very much.

Neena: Thank you very much, Bill. I'm glad to know that there's still hope in terms of crossing the border if you have to. My next speaker is Chris Andree, one of my partners in the Waterloo region office. Now, Chris is really famous, internally at least, for his rants about various decisions of the court and, unfortunately the way it worked out, he did not get the opportunity to rant about the decisions this year. He is, however, our answer to CBC's Rick Mercer. Take it away, Chris.

Chris: Thanks, Neena. I did want to commend my colleagues so far who've talked about some of those decisions. I'm not sure that they mustered up the same level of moral outrage that I might have been able to muster up but they certainly did a good job of expressing our general collective views on things. My presentation is about flexibility in your employment agreements. So to start with I wanted to take you all back to those dark, dark, dark days in March and April when businesses were adjusting to the new reality. Some were forced to close by legislation. Some were not required to close but choosing to close. Some were wanting to remain operational but were just not in a position to do so. So, it was a very trying time for many employers and consequently we were getting an awful lot of calls. At the same time plaintiff employment law counsel, the usual suspects from Toronto and elsewhere, were shouting from the rooftops about how, among other things, the layoff as a constructive dismissal. So there were employers calling us in a great deal of angst. Some were calling because they'd already laid people off. Some were calling to tell us that they needed to lay people off. During those dark times there were these small glints of sunshine. They sort of reminded me of like sparks off of a campfire. It's very dark but every once in a while you see these little lights and back in the early 2000's we began inserting, among other things, layoff clauses in employment agreements. So they've been around for a long time. On those few occasions where we had conversations with clients and could say, "You're okay. You've got a layoff clause. This layoff is not going to constitute a constructive dismissal." There was a reassurance and it made us feel better amongst all the other hard things that we were doing. I also remember, and we had discussions with some clients, we talked about inserting layoff clauses in their agreements and they chose not to. Many in the technology area were like that. They said, "Oh, we'll never need to make use of those." and of course it was disappointing, not that we anticipate a global pandemic, but certainly it was disappointing in those circumstances where we were not able to say to clients, "You've got a layoff clause. You're okay." What that exercise did was to emphasize the importance of flexibility.

So let's start with what does flexibility mean in an employment agreement and really what it means is that you have a contractual right to enforce a modification to the status quo. Now, I'm sure that many of you are thinking to yourselves, well, whenever we discussed changes around terms and conditions of employment are we not talking about constructive dismissal? How is that not a constructive dismissal. So in order for me to make my points through this presentation we need to just briefly revisit what a constructive dismissal is. A constructive dismissal, and this is a Supreme Court of Canada case law, Potter and New Brunswick, there are two branches to the analysis. The first is a unilateral breach of the contract by the employer. The second is the breach so serious as to amount to a constructive dismissal and allow the employee to resign from their employment and sue? If it's not serious enough well then there's still a breach but the employee's remedy is limited to a claim for damages. So what we're talking about when we're talking about flexibility in employment agreements is we're talking about avoiding that first branch. In the case where you've got a provision in your agreement that says you can make changes there is no unilateral breach of the contract. Rather, what you have is the enforcement of a contractual right to make changes. So on the theme of today, particularly Melanie in her comments, any right to make changes during employment is going to be strictly enforced. It's probably more strictly enforced now than it was even a year ago. So, to her point, drafting needs to be near the level of perfection and as someone who's drafting these clauses, to the degree that you can, I'm recommending that you keep it simple. If you need to learn more we can discuss that offline, but as you are drafting these clauses and considering what to say, I'm going to suggest that you keep it simple. The other thing that you need to always consider when you're talking about, and I've been looking at some of the Q&A that's been going on, you need to ensure that the agreement, itself as a whole, as well as the clause that you are seeking to rely upon are enforceable. As I often say when I'm talking about agreements for existing employees give some consideration to consideration. Next slide, please.

So let's start with temporary layoffs. Amy and Andre talked a little bit about this but the point around layoffs is you must create the right to layoff in the employment agreement. Yes, there are provisions in the Employment Standards Act that talk about layoffs but those provisions, it's been found by the Divisional Court, they do not create the right to layoff. They simply stipulate how you can exercise the right to layoff if you have created it. Then Amy and Andre talked about IDEL and whether the changes that have been made to create the deemed IDEL what effect, if any, they will have on the common law. The statement was made that they'll be influential on a judge and I think we say that aspirationally as much as we can. I'm not sure that we can say that with any certainty because the decisions just haven't come yet. There, I'm sure, will be plenty as we go forward but to date there haven't yet been any. Our argument is going to be there's an implied term that during a global pandemic an employer can temporarily layoff, yet to be determined. Next slide, please.

Other forms of adjustments or flexibility that you can create. Another one that was very popular, is one way to put it, in March and April and May and in the months thereafter were reductions in wages. Reductions in salary. Reductions in the number of hours. In those dark days in March and following there were across the board reductions in salary. In many cases certain levels would have, within the organizational hierarchy, would have different levels of adjustment. In some cases there were across the board reductions in hours or days of work. In many cases, 20, 40 and some cases 60% reductions. The question comes can you create the flexibility that you need to implement those kinds of changes? The answer is yes. I, myself, have negotiated these and not just recently, this goes back many, many years where we've negotiated the right to reduce compensation for senior level people. It's a little more difficult in the context of more junior level people but that is something that you can certainly do. One of the things that you need to recognize is the right to exercise a reduction in salary or a reduction in hours or a reduction in compensation more broadly. It cannot be, and I'm confident a court would not permit it to be, an implemented or targeted to have the effect of causing a termination or to cause the employee to leave the organization. I think that it is much wiser within the clause that you're trying to draft to say we can adjust your compensations so long as we adjust the compensation of everyone at a similar level and to a similar degree. So, in terms of the tips, one would be a cap on the percentage of the reduction. A second would be to limit that reduction to an entire level of the corporate hierarchy. So I'm sure many of you are saying to yourselves, "Well, yeah, that sounds great in theory. How am I going to get someone to agree to that?" Well, it does create a barrier to recruitment but my feeling is that as we carry on from this pandemic people's perceptions of things have been changed. I think there's going to be more willingness among people. Certainly senior level people to say, "Well, if the business finds itself in a situation where it needs to reduce it's costs and everybody at my level is taking the same hit, I think there's more willingness to be able to do that." So I would encourage you to consider it. I refer to a case, it's a Court of Appeal case in Ontario, where there was an expressed term to reduce the salary. The individual in that case had independent legal advice. In fact had been told by his independent legal advice not to sign the agreement. But there were also other features that I think encouraged the court or permitted the court to find that the reduction was allowed. One of them was to give notice of the change and the second was, and I mentioned it earlier, this was not an indirect attempt to cause the employee to leave the organization. It was business necessary, so to speak. While this is a Court of Appeal decision you can see that it's a little old and our Court of Appeal's attitude has shown signs of being a little more strict so I would encourage you, as your drafting these, to, as Melanie talked about, the standard of perfection seems to be the one that we're going to be held to. Next slide please.

Here are some other example of the kinds of flexibility that you can put into your contracts. In the case of incentive bonus plans, here are three examples of situations where courts have enforced the right to flexibility, or the right to make changes. So a 30% reduction in commission. That's a pretty substantial reduction that was found to be enforceable. In BC the business was changing the way that it was implementing its incentive compensation plan. So it was capping its performance plan and then substituting an MIP. in that case it was unacceptable but that's because the language was deficient. The concept of making those changes was endorsed by the court in the context of its comments. So what it said is you could do it, you just didn't do it well enough, and that seems to be a theme through many of the cases where drafting is criticized. Another theme that I had mentioned earlier and that is in the Snell decision. The law is going to imply a term of reasonableness so if you have created the right to make a change I don't think that you're going to get away with an 80% change without any notice, without any specific terms, to allow that kind of a change. Next slide, please.

So here are some other examples beyond compensation that you would want to consider in terms of building out the flexibility in the employment agreements that you have created. These are the kinds of things that we have drafted for many clients over time. A change in duties. Obviously that would more often, where you would need that kind of flexibilities where there's a demotion. But it may also be where you are expanding the duties, because as you would all appreciate, where someone has a bundle of duties and responsibilities and then something occurs where the employer's saying, "I also want you to take on these additional duties and responsibilities." The employee may say, "Well, that's a material change to my terms of employment." If you've built in that flexibility you've got the right to implement those changes. But you're going to have to be specific. You're going to have to reasonable. You're not going to take someone who is the VP Finance and also make them responsible for emptying the wastepaper baskets and cleaning the glasses from the board room after meetings, if we ever get back to having meetings in board rooms. Other factors, or other themes, would be a change in location of the operations. Right now I would remind that you young professionals who live in 400 square foot condos in downtown Toronto are not the only ones who are fleeing the downtown. So businesses are changing their locations and that can be, in certain circumstances, a constructive dismissal. So, again, you would want to build in flexibility for that. Another theme is working remotely. We have lots of people working remotely now and I want to just remind people, you want to have the ability to permit that to occur, but you also need to have the ability to restrict that because some employees, for some of our clients at least, are taking full advantage of the ability to work remotely. For example, and I don't want to get into too much tax law because that's not any fun, but we have employees who are moving to different Provinces and in some cases moving to different countries. Well, that creates employment law issues. It creates tax issues because you now have an employee in a different jurisdiction. So if you find yourself with those situations you should reach out because there are implications for that. Another example is hours of work and changing shifts. There are going to be the human rights issues. Jake talked about the tests under human rights law with respect to family status and others and a last one that seems to go overlooked is the right to suspend without pay. You can create that right in your agreements. I don't think I have another slide. Do I, Shannon?

Okay, so in summary, let me leave with you a few thoughts. First, don't give up. You can draft these. I would encourage you to keep it simple. I've made some other suggestions around tips. But as with everything employment, be reasonable, be thorough and get help and we're happy to help. Thanks, Shannon. Thanks, Neena.

Neena: Thank you, Chris. That is probably the least ranting you have been since I've ever met you so thank you for your sober presentation and, certainly that's one of the themes is to use your contracts as a tool to help you through COVID-19 but also, in general, managing your businesses. We're going to take a quick break. It's scheduled for 10 minutes but I'm going to start it right at 11:30. It is a Q&A Panel. I don't know if we're going to get to all the questions but if you still have some questions please use the Q&A feature and I'm going to turn it over to my co-Host, Elisa Scali, who will moderate this part of the presentation. Thank you for staying with us up and until this point and do come back for our favourite Stump the Lawyers quiz show. Take care.

Elisa: Welcome back everyone. We'd like to now resume our seminar with our panel discussion and I would like to introduce our panel of experts this morning. Mark Josselyn is a partner in our Ottawa office and for those of who that know Mark, you know that he is a soccer enthusiast, and he is still waiting for his call up to Manchester United. I think at this point he needs to give up but he still holds out hope. Craig is also a partner in our Ottawa office. He is our backcountry enthusiast. He may be the only one in our office that is a backcountry enthusiast. He's also the editor of our very popular ELE newsletter, and if you are not already subscribed, you should be. Neena is a partner in our Waterloo office. She's also the co-Chair of the Diversity and Inclusion Committee of the office. I'm quite envious of Neena because she recently gave up city life for life on a 20 acre farm with her husband, her son, four cats, one dog and 17 horses. It's not surprising she prefers to work out of the office. So welcome to our panel. We have received a number of questions from our attendees throughout the seminar so I am going to put those over to our panel to answer some of these questions for you. First I'll throw it to Craig. Given all of this recent case law challenging enforceability in employment agreements and termination provisions how do you convince employers to transition away from a simple one page employment agreement and adopt a more robust employment agreement when it may not even be enforceable?

Craig: Right. Essentially there has been, and you probably all see this and we've had some of our colleagues touch on it this morning so far, there's been almost an assault on employment contracts. I won't quite say an assault on employers by the courts but certainly on certain provisions of employment contracts. So there is necessarily some uncertainty when we're looking at a contract which is unfortunate because a contract, if you even take a look at employment agreements it's a special commercial agreement, it is intended to provide some degree of commercial certainty. Some degree of certainty between the parties and we definitely have seen a lot less certainty over the last few years and especially recently. Essentially, if I can recast the question, do we give up? Right? Do we just strip it right back to the bare minimums and not even try? That's certainly not what I recommend. It's not what we recommend as a group. There a number of reasons why we would still recommend including it complete. A fully loaded employment agreement when onboarding employees. First of all, even though I said there was some lesser degree of certainty, it still should provide some certainty between the parties as to what the framework for the engagement is and what the rights of each of the parties is. I also say that it does act like a bit of an insurance policy because when you include terms that deal with protecting your, the employer's, interests including against preventing your employees from soliciting employees or customers after they depart, terms that prevent competition by key employees for a period afterwards and, of course, termination provisions. These are all items that have the potential to have significant impacts in terms of protecting an employer and minimizing cost exposure. So a well drafted contract we do believe can still save, I think, tens of thousands of dollars over and over and over again. So it's certainly a cost that pays for itself in multitudes. There's also the practical impact of having a well drafted complete contract because even though the courts have raised some questions about some of the language that has been used in certain employment agreements and the terms within those, having that employment agreement that says to an employee on their departure that you cannot solicit our customers for a period of six or 12 months, or that says you are entitled to X number of dollars or this basket of entitlements on your departure and that's it, that's all. That gives an employer, I think, an important starting off point for the conversation and most cases, of course, don't end up in front of a trial judge or to the Court of Appeal or beyond. So having that contract with the complete suite of terms included really will help any employer stake out their rights, their entitlements and manage their relationship with employees. Today, yes there is a greater risk that certain provisions will be deemed unenforceable by a court, but we do keep that in mind when we are drafting. The last thing that I would just point out because I think it's important, I always try to when I'm talking about contracts, is an employment contract is never a said it or forget it situation. So you always want, I don't know if everybody loves infomercials as much as l do, but don't said it and forget it. You do want to revisit your contracts, your templates periodically. Have that conversation with us because as we've been discussing this morning there are things that change and we need to keep on eye on these items as the jurisprudence continues to evolve. I'm certain that it will continue to change so just keep that in mind as well.

Elisa: Thanks, Craig. So, Mark, what if we do review our employment contracts and then we realize given the change in the law that maybe our termination provisions could use a refresh. What's involved in updating those letters if you want to present those to your existing employees?

Mark: So, thank you, Elisa. You're into the issue of fresh consideration and just with when you're hiring new employees they're our best practices. You want to make sure that your paperwork is concluded before people start their work. You don't want to give them their employment agreement on day one after they've already started because then that agreement is likely going to fail for lack of fresh consideration. The same thing applies when you're dealing with existing employees. There needs to be some fresh consideration for the new paperwork. Normally that can be a pay increase but not a pay increase that would have occurred in any event. So if you've been giving people increases of 1.5% or COLA increases every January for the last 15 years. Doing that again is arguably not going to be fresh consideration. So it needs to be something new. It can be salary. It can be an increase in vacation or other benefits. An increase in bonus calculation. Oftentimes though it comes down to a signing bonus, and for the quantum of the signing bonus there is some disagreement, even amongst the folks on this call. I describe myself as being from the peppercorn school which is that where a judge finds the existence of fresh consideration, she/he, they're not entitled to assess the adequacy of the same, even a peppercorn will do. There are other people, even in our group not to name any names, but Melanie and Neena, Melanie prefers that it be at least the cost of a good dinner for two with a nice bottle of wine. That's a debate for later.

Elisa: Thanks, Mark. Does anyone want to chime in on the consideration issue or we will let that sit for now.

Neena: Can I just say something? If I'm going to go into court I do not want to say that what I gave to the employee in exchange for giving up all their common law right was a box of Breton crackers. I would prefer to say it was something substantial and I do think that we have to be mindful of developments like good faith, unconscionability, the whole protectiveness of employees and so I would like to be able to say this was legitimate real consideration.

Mark: Bread and crackers with or without peppercorns.

Neena: We'll debate that.

Elisa: Okay. We have COVID related question. Given these difficult COVID times a lot of companies are experiencing financial hardship and because of it some companies need to reduce their head count. They just cannot continue for financial reasons. What happens if a company doesn't have the funds to pay out these reasonable notice periods pay in lieu to these employees? Neena.

Neena: So you are absolutely then going into an area of law which is known as insolvency and bankruptcy because you are now not able to function and pay your debts as they come due. I would recommend that before you draw that conclusion you talk to, first of all, your banker, your accountant to see if there's some government relief that actually assist you. It's a little bit outside of our scope and, of course, your insolvency lawyer. Couple of things you need to remember that are important is that directors and officers have obligations for unpaid back wages, unpaid back vacation pay and unpaid expenses. So as you look at your finances you want to make sure that the company, with proper advice, deals with those kinds of liabilities that might expose you, as a director, sorry it's a director's liability not an officers, a director may have those liabilities and you'll want to deal with that. So, those are some of the complex issues you need to look at but, in general, you're looking at an insolvency application, if that's really where you are. I'm hoping there are ways with the government subsidies and programs that there may be a way to work out those steps.

Elisa: Thank you, Neena. What if the employer is not in a bankruptcy scenario and they do let an employee go? There's a wrongful dismissal. Do we think the courts are going to give any latitude to employers, in light of COVID and these tough financial times, if they've either had to let someone go, doing an across the board salary reduction, do we think it's going to impact any common law awards? Craig.

Craig: Right. I think that that's still very much to be determined but if I'm crystal balling it and looking at what we expect is going to happen, maybe more than what we just hope is going to happen, I think we have an expectation that the courts are going to exercise some degree of perspective. I can't imagine a situation coming out of COVID-19 and those business, many businesses, not all but many businesses have been hit hard, have had to make difficult decisions and, for at the end, those who make it over the line and have persevered through COVID-19 to be crushed with a series of constructive dismissal suits or extravagant notice awards, to be penalized at that stage and have their liability put further at risk. That's not a reality that I think most clear-eyed judges are going to be aiming for. Our expectations that there is going to be some perspective which means some enhanced latitude. Now what does that mean exactly? It's going to differ case by case, I believe, and so we think that there's going to be more latitude likely shown by a court when the pain has been shared throughout an organization. I don't expect that a court is going to be very sympathetic where the rank and file employees have borne the brunt of reductions or salary decreases or layoffs when senior management and the c-suite remain unaffected. I don't think that's going to be met with the same type of sympathy and latitude as where really the senior management led by example and also took some of the pain of COVID-19. The other things is if this has been used an opportunity to sort of package out undesirables, those employees who have been more challenging or perhaps been off and on of a medical leave for a period of time, this is not the opportunity, I don't think, to exit those individuals because, again, that's not going to present very sympathetically to a court. So long as decisions have been made, I think, with an eye to ensure that everybody is bearing the brunt of some of these difficult decisions. We do expect that there is going to be some latitude and perspective by the courts. With the common law notice awards, I'm sure many of you have also received demand letters from a certain number of firms, and will remain unnamed. Basically asserting that no employee is going to work ever again and so the awards, the notice that is being claimed is quite high. I do think that there's a way to counteract that. I think reality will, to some extent, counteract those arguments if we're dealing with it in a case. But also if I'm in front of a judge I'm going to want sector specific evidence that demonstrates exactly how this employee's prospects have been affected, if it all, by COVID-19. The reality is some employees have just as easy a time to find work now as they did before so we would want that evidence. I don't think that we're going to see a significant spike in notice awards. Yes, we have high unemployment generally across the board still in Canada, but nothing beyond, I would say, that anything that I've seen in my lifetime when the economy has taken a bit of dip. The other thing there is some case law, typically from Alberta, that suggests that during time of economic hardship an employer should not bear the brunt of that and be penalized and that, in fact maybe, notice awards should be decreased during those periods of time. I don't know and I think it's too early to say how persuasive that case law is going to be in the Ontario sector.

Neena: Can I just add one thing, Elisa. There is some older Court of Appeal stuff in Ontario as well which says that broad economic events that are outside of the specific employer's control should not be used to either increase or decrease awards because that's a factor that is outside of the control of either party. So we're hoping that line of cases will actually win over the, "Oh, there's high unemployment due to COVID-19 so we get to tack on another six months to every package," which is the demand letter that I too get from the unnamed plaintiff side law firms.

Elisa: Yes, well COVID is certainly an exceptional circumstance and we hope that the courts will show some latitude towards employers. We are living this pandemic right now. It is a reality. It's not something that we could have foreseen but now that we know is there something that we should be doing with our employment agreements? Adding provisions to provide protection in light of COVID-19? Mark.

Mark: So, although COVID was unforeseen I think most of us agree that it probably doesn't qualify as a frustration of contract. Some of us will try to argue that. You've heard other people on this call, including Chris, talking about temporary suspension of obligations and hoping that trial courts will give us some latitude. Then you heard Craig talk about the circumstances where that might happen. So it's not a frustration but it's a temporary suspension of contractual obligations. I think you're going to have to convince a court that if you're doing something like across the board reduction, it has to be for a purpose like saving jobs, and not maximizing profit to the ownership so that the owners are going to take a loss that is at least equal to that of the employees, as Craig said, sharing that hurt and it is not from improper purpose. It doesn't go further than the necessary in terms of percentage or time. All of that is a common law. So what are the lessons learned from COVID? I don't want to be standing in front of a board of directors, five years from now, dealing with COVID-27 and they're saying, "Did you guys learn nothing from COVID-19? Did you not start drafting provisions to allow contractually for layoffs, like the ESA was amended, and to allow for across the board?" I think the answer legally is, yes, we should be looking at those things as lessons learned. But Chris raises a good point. Is this a barrier to recruitment? Is this culturally something which your organization can do legally that does not want to do from a culture perspective? You'll have those people saying, "Well, so long as I get hit like everybody else, I'm a member of the senior management team, I'm willing to do that." and you're going to have other people, VP level and above saying, "I could work anywhere and I came here and I did not expect to see in my contract the right to lay me off for up to X number of weeks. Or the right to trim my compensation by five to 10%." I think there are cultural issues as well as legal issues. But from a legal perspective it is certainly something that we are raising with our clients is something that they need to think about going forward. Should these provisions now be in your employment agreements?

Elisa: Okay. Do you anticipate that they could potentially become standard terms if everybody jumps on board with these types of provisions?

Mark: I think we're going to see a lot of them. I really do. I think some organizations will say, "Thank you for the drafts and thank you for the advice but we're not going that way."

Elisa: Okay. Thank you, Mark. Now turning to an AODA related question and I'll turn this to Neena. We have a question here, if your company's head office is in the United States and the website is controlled by that US office, does that impact the Canadian companies obligations, insofar as the website requirements under the AODA?

Neena: So, I'm going to give a guarded answer because there isn't actually specific case law on this point. The issue is what does control mean. So it's not enough to say, "Well the website is owned by the US company and the developers are in the United States and they do all the changes." Really what you have to do is look at that website and see if Canadian or Ontario related content is being changed in order to benefit the entity that is working. It can be a US entity or a Canadian entity that is in Ontario. Remember, the website obligations as Shefali mentioned, only apply to companies that have 50 employees in Ontario. So let's just assume that they do apply in this case. So what I say to my clients is I want to know from a de facto perspective whether or not the Canadian entity could request a change and whether that would happen. Or is it truly one of these large conglomerates where maybe the Canadian entity is doing some small little piece of work and doesn't really have the ability, and there isn't a dot ca or a dot Ontario site, and so there really isn't a transparent mechanism by which changes can be made. So, theoretically there is an exemption because you have to be able to control your website but don't just assume it's because of the legality of who owns the website. You have to look de facto as to whether there are opportunities for the Canadian entity to request and make changes informally. So it's very fact driven.

Elisa: Thank you, Neena. So moving to a COVID related question. Moving away from the AODA. Craig, if an employee has chosen to move cities during this pandemic while all employees are temporarily working from home, can the employee require the employer to make the position permanently remote even if everybody else is returning physically to the office, because by that point the person's no longer in the same city? You're on mute.

Craig: There it is. Bound to happen to somebody this morning. So my first question that I would be interested in knowing, in terms of the fact scenario, is whether or not the employee advised their employer that they would be temporarily relocating to another city while they're working remotely? is this city in Canada? I would hope so because if not there are other potential implications from a tax perspective that would of course potentially come into play as one could be a concern. But assuming that this was discussed between the employer and this employee, my first answer would be it's not up to the employee to dictate their terms of employment. If the work under their contract is to be performed in a particular workplace, in a particular city, my view is of course, the employer could require that employee to return. Now that's provided there wasn't any other larger discussion about the employee not returning or permanently relocating to this other city, but absent anything of that sort and I'm hoping that there was maybe a clear discussion, that this was temporary relocation because they wanted to spend time with whomever, but the understanding, I would say at least implicitly, would be that they relocation if approved, was approved for the duration of the work from home period and the employer certainly can ask that employee to return to the workplace, if it's safe, or I would suggest even return to the city within which their work is expected to be performed. And, again, I would hope that that was clearly discussed, or perhaps put into writing at the outset before the move, but even if it wasn't implicitly discussed I would suggest that it's likely was an implicit part of that agreement that this was only going to continue to occur during the period of working remotely during COVID-19. The employee does not get to say, "Look. I'm staying here because I want to stay here."

Elisa: Thanks, Craig. I have one employment agreement related question and I'll turn this over to Mark. It's not something that we discussed today, necessarily, but we do have a question regarding restrictive covenants. How do I draft restrictive covenant in my employment agreement to make sure I stay out of trouble?

Mark: I note that we are running out of time so I'm going to be really brief on this and say it is a complicated area but there's a couple of cases you need to know about. I think the leading decision in Ontario is still Lyons versus Maltari and that stands for the proposition in an employment situation. I'm not talking about the sale of a business but in an employment situation where you're dealing about an employee as employee and not seller of the business. As a general proposition the Ontario Court of Appeal has said, "We are not going to enforce certain restrictive covenants. We are not going to allow you to having non-competition provision where ordinarily acts of extraordinary circumstances, legitimate business interests of the employer, could have been adequately protected with a properly drafted non-solicitation provision. So that's what we tell our clients. You need to have properly drafted non-solicitation provisions. What does that mean? Don't have them overreach. There's a high court decision where people had perfectly good non-solicitation provision until they added in language in it saying, "and you won't even service them. You won't give them any service at all if they reach out to you." The other case you need to know about is called Staebler and Allan. Staebler says that where you put that into a non-solicitation provision it becomes a non-competition provision and therefore it's unenforceable according to Lyons and Maltari. So don't overreach. Have a properly drafted non-solicitation provision and know that the Supreme Court of Canada has said we, "We won't ... the lease for you folks. We won't notionally sever them and we won't move pencil for you so if you don't draft them right, or if you give us a menu, we're not going to stroke through four of them and leave you with the enforceable one." That's a very high level answer to a complicated question.

Elisa: Thanks, Mark, for doing that. We have a few minutes left. We have, I think, time for one more question for Neena. Are there are any risks of making an offer of employment and then rescinding the offer of employment so long as you do it before the person actually starts working?

Neena: Yes. Absolutely. So there are cases where that's happened. It's what's called an anticipatory breach of contract and absolutely the employer can be held liable. There is actually some doubt in the case law as to whether or not the employer's liability is constrained by a termination clause or not. It depends on how well it's drafted. What I've noticed in COVID-19 is that there were literally hundreds of offers that were rescinded and to date, to date knock on wood, I have not actually received a single claim based on it. I think that these are entry level people who realized it's COVID-19, what do you expect? I'm not going to jeopardize my career and reputation by starting off with law suit. But, yes, there is definitely risk and may be what you need to do but it's not a risk free option.

Elisa: Thank you, Neena. So I think we're right on time. That concludes our seminar for today. We hope that you found it helpful and informative. I thank our panel for their wisdom in answering those questions. Obviously if you have any other questions all of our ELE team is here to help you with those questions. Before you leave, as promised, for those of you who are members of the HRPA this session does qualify for HRPA credits. The code is on your screen, 207906. For the lawyers in attendance the session does qualify for substantive credits of 2.5 hours. This session has been recorded and will be posted on our website after today and a number of people have also asked if the presentation slides will be made available and they will be distributed following this session. Our goal with these sessions is always to be helpful and informative so your feedback is very important to us. We will be distributing a link to a survey which should only take you a few minutes to complete and we do ask that you complete it and let us know how we did today. We thank you for taking the time to be with us today. We hope that next year we have the opportunity to see you in person at our seminar. Be safe and have a wonderful day.